Hue v. Farmboy Spray Co., Inc.

• Decision Date: 15 June 1995
• Docket Number: No. 62324-4,62324-4
• Court: Washington Supreme Court
• Parties: , Prod.Liab.Rep. (CCH) P 14,259 Oliver Ed HUE and Margaret L. Hue, husband and wife; et al., Petitioners, v. FARMBOY SPRAY CO., INC.; et al., Respondents.

Page 67

127 Wn.2d 67

896 P.2d 682, Prod.Liab.Rep. (CCH) P 14,259

Oliver Ed HUE and Margaret L. Hue, husband and wife; et

al., Petitioners, v. FARMBOY SPRAY CO., INC.; et al., Respondents.

No. 62324-4.

Supreme Court of Washington,

En Banc.

June 15, 1995.

As Amended Oct. 26, 1995

[896 P.2d 684]

Velikanje, Moore & Shore, Inc., John S. Moore and J. Jay Carroll, Yakima, for appellants

Holly A. Hollenbeck, Kennewick, for respondent Farmboy Spray Co.

Lathrop, Winbauer, Harrel & Slothower, Susan K. Harrel, Ellensburg, for respondent Dupont.

Lukins & Annis, P.S., Andrew C. Bohrnsen, Spokane, for respondents Wheat Growers.

Meyer, Fluegge & Tenney, P.S., Walter G. Meyer, Yakima, for respondent Moore, et al.

Rettig, Osborne, Forgette O'Donnell & Iller, Francois X. Forgette, Kennewick, for respondent Hamilton, et al.

Horton, Wilkins & Faurholt, Harvey Faurholt, Kennewick, for respondent Nehles, et al.

Bryan P. Harnetiaux, Spokane, Gregg L. Tinker, Seattle, amicus curiae for appellants on behalf of Washington State Trial Lawyers Ass'n.

Stephen P. Larson, Seattle, amicus curiae for respondents on behalf of Washington Defense Trial Lawyers.

TALMADGE, Justice.

This case arises out of the use of pesticides in the Horse Heaven Hills and their alleged downwind fall-out in Badger Canyon, Benton County. The plaintiffs allege that pesticides drifted from the Hills down into the Canyon, onto their homes and farms, damaging their crops and plants. Defendant E.I. du Pont de Nemours & Co., Inc. ("DuPont") manufactured the pesticides in question (sulfonylurea herbicides named "Glean," "Harmony" and "Finesse"). Defendant Farmboy Spray Co., Inc. ("Farmboy") aerially sprayed them on wheat farms in the Horse Heaven Hills, at the behest of the other 27 defendants who own the farms ("Wheat Growers"). Holding that the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), 7 U.S.C. § 136 et seq., preempted plaintiffs' common law inadequate warnings actions, ¹ because the products' labels are registered under FIFRA, the trial court dismissed various claims against the defendants. The trial court also dismissed other claims as a matter of law before trial and during trial. After a lengthy trial, the jury rendered a verdict for the defendants on the remaining claims. Following denial of post-trial motions, plaintiffs appealed

and defendants cross-appealed. The Court of Appeals, Division III, certified this case and Goodwin v. Bacon, 127 Wash.2d 50, 896 P.2d 673 (1995), to this [896 P.2d 685] Court. We affirm the trial court's judgment for the defendants

ISSUES

(1) Did the trial court err in holding that FIFRA preempted plaintiffs' claims relating to the adequacy of the pesticide labels?

(2) Did the trial court err in dismissing plaintiffs' claims based on breach of implied warranties?

(3) Did the trial court err in using a verdict form that allegedly contradicted the court's instruction on proximate cause?

(4) Did the trial court abuse its discretion in responding to a jury inquiry outside the presence of counsel?

In light of this Court's disposition of these issues, we do not reach the issues raised on cross appeal by defendants. ²

FACTS

Plaintiffs owned 14 farms and/or homes with gardens in Badger Canyon. Clerk's Papers, at 588, 597. They grow irrigated crops such as alfalfa, walnuts, fruits, asparagus and other vegetables, and ornamental plants such as "baby's breath." Exs. 148, 200; Report of Proceedings vol.

XII, at 12, 73; XIA, at 146; ³ XIIIA, at 163, 169-70, 187, 192; XX, at 181. They alleged that their plants were damaged or destroyed by pesticides drifting from the Horse Heaven Hills, an area south, west and above the southern wall of the Canyon. Clerk's Papers, at 588-89, 595-96

The Wheat Growers used the pesticides to kill off competitive, moisture-consuming weeds on their dryland (non-irrigated) wheat farms. Clerk's Papers, at 132-34; Report of Proceedings XV, at 4, 16-19; XI, at 4. There is no dispute that, pursuant to FIFRA, DuPont had registered the pesticides and their labels with the Environmental Protection Agency ("EPA"). Report of Proceedings V, at 82-86; VII, at 9; XI, at 47-48; XIV, at 78-79; Exs. 3A-E, 4A-D, 5A-B (copies of labels). The labels contain detailed instructions and warnings as to the maximum amount of pesticides to be used, the need for extreme care to avoid drift, and how to safely use the pesticides under particular conditions and in particular states. ⁴ The labels

also [896 P.2d 686] disclaimed warranty liability. ⁵

The plaintiffs claimed that Farmboy sprayed enough farms in a given period that 1-3% of each application escaped and collectively contaminated the air, ⁶ and then would drift into Badger Canyon due to wind patterns, and damage plaintiffs' plants. Report of Proceedings II, at 199, 300-02; VII, at 70, 76; VIII, at 90, 93-94; XIA, at 150-51; XIV; XIVA, at 123-42, 175-89, 195-96; XX, at 174, 178-81; Appellants' Reply Br. at 7. Under these circumstances, it was allegedly not possible to trace particular plant damage in the Canyon to

particular applications of pesticide in the Hills. Report of Proceedings II, at 257-58, 301-02; XI, at 9, 33; XIA, at 182

Plaintiffs filed an action for damages in the Yakima County Superior Court, asserting a variety of very general claims against various defendants. ⁷ As against the Wheat Growers and Farmboy, plaintiffs asserted claims for negligence and strict liability. Before trial, the trial court apparently dismissed the negligence claim against the Wheat Growers. ⁸ Plaintiffs did not appeal this ruling. The court also dismissed a strict liability claim against the Wheat Growers in connection with ground applications or alleged movement of pesticides from the Wheat Growers' land. Plaintiffs did not appeal this ruling. ⁹ Report of Proceedings I and II; see also, Report of Proceedings I, at 135 et seq.; II, at 235-41. See generally, Third Amended Complaint, Clerk's Papers, at 587-92. Ultimately, as against the Wheat Growers and Farmboy, only a strict liability claim for drift from aerial applications was tried and submitted to the jury.

Against DuPont, plaintiffs alleged claims for design defect, RCW 7.72.030(1)(a); inadequate warnings/instructions, RCW 7.72.030(1)(b); nonconformity with implied warranties, RCW 7.72.030(2); failure to meet consumer safety expectations, RCW 7.72.030(3); ¹⁰ unfair or

deceptive acts or [896 P.2d 687] practices in marketing the products for use in the Horse Heaven Hills, RCW 19.86.020, .090; and negligence, RCW 7.72.040(1)(a). Clerk's Papers, at 498-99

Before trial, the court dismissed certain claims against DuPont which were based upon alleged inadequate testing and marketing the pesticides for use in the Horse Heaven Hills/Badger Canyon ecosystem. The trial court ruled that FIFRA preempted most of the product claims and the negligence claim to the extent that they were based upon inadequate label warnings. The court also dismissed claims for breach of implied warranties (due to lack of privity), and unfair or deceptive acts under RCW 19.86. Clerk's Papers, at 425-26; Appellants' Opening Br. at 6-7. The latter claim was not appealed.

At trial, plaintiffs and defendants introduced expert opinion and other evidence supporting and rebutting the allegations of long distance drift causing damage to plaintiffs' plants. ¹¹ Plaintiffs also introduced evidence supporting what they call "negligence," but which would be better termed "misrepresentation," to the effect that DuPont knew of the long distance drift pattern in the Horse Heaven Hills/Badger Canyon ecosystem, and withheld the relevant information from the EPA, materially affecting the warnings on the labels. Appellants' Opening Br., at 7 n. 3. At the close of plaintiffs' case, the trial court dismissed this claim because there was no proof that the EPA would have required DuPont to change the labels had DuPont provided the information to the EPA. Clerk's Papers, at 197-98; Report of Proceedings I, at 129-33. Plaintiffs did not appeal this ruling, stating this "was not

the theory of negligence that the plaintiffs desired to proceed on." See Appellants' Opening Br., at 7 nn. 3, 29.

Defendants then moved for dismissal of the remaining claims, contending that there was no evidence that any defendant caused any harm since the proof did not identify the particular pesticides, applications or entities that caused or contributed to the particular injuries. The trial court denied the motion, ruling that plaintiffs did not have to establish proportions of responsibility or establish the effects of individual applications. ¹² Accordingly, the trial court instructed the jury in Instruction No. 5 that plaintiffs had to prove that a particular defendant used the pesticides, a portion thereof drifted into Badger Canyon and that "the off target drift of the pesticides was a proximate cause of damage to an individual ... plaintiff's property or crop." Clerk's Papers, at 152. In a Special Verdict form, the jury was asked:

Clerk's Papers, at 211.

[896 P.2d 688] While the jury deliberated, the foreman sent the judge

a note asking, "Could we have a definition of 'Preponderance' of the evidence--Also the term 'Proximate Cause.' " Without informing counsel of this query, the judge replied in writing, "Please re-read the instructions which define those terms." Clerk's Papers, at 104.

The jury returned the Special Verdict form in which questions Nos. 1 and 4 were both answered "No." The trial court entered a judgment on the verdict of the jury, from which the appellants appealed to the Court of Appeals, Division III, and from which the respondents sought cross review. The Court of Appeals certified the case to this Court pursuant to RCW 2.06.030. We have received amicus curiae briefs on the FIFRA preemption issue from the Washington State Trial Lawyers Association ("WSTLA") and the Washington Defense Trial Lawyers.

DISCUSSION

The central focus of this case,...